harmeet k. dhillon (sbn: 207873) gregory r. michael (sbn ...€¦ · 14/4/2020 · harmeet k....

Plaintiffs’ Application for TRO and Case No. 5:20-cv-00755-JGB-KK

For OSC Re: Preliminary Injunction

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HARMEET K. DHILLON (SBN: 207873)

[email protected]

MARK P. MEUSER (SBN: 231335)

[email protected]

GREGORY R. MICHAEL (SBN: 306814)

[email protected]

DHILLON LAW GROUP INC.

177 Post Street, Suite 700

San Francisco, California 94108

Telephone: (415) 433-1700

Facsimile: (415) 520-6593

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

WENDY GISH, an individual, et al., Plaintiffs, v. GAVIN NEWSOM, in his official

capacity as Governor of California, et al., Defendants.

Case Number: 5:20-cv-00755-JGB-KK

Hon. Jesus G. Bernal

APPLICATION FOR

TEMPORARY RESTRAINING

ORDER AND FOR ORDER TO

SHOW CAUSE WHY

PRELIMINARY INJUNCTION

SHOULD NOT ISSUE;

MEMORANDUM OF POINTS

AND AUTHORITIES

Date Filed: April 14, 2020

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Case 5:20-cv-00755-JGB-KK Document 8 Filed 04/14/20 of 35 Page ID #:74

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TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Plaintiffs Wendy Gish, Patrick Scales, James

Dean Moffatt, and Brenda Wood, by and through counsel, will and hereby do apply to

this Court pursuant to Fed. R. Civ. P. 65(b) and Local Rule 65-1 for a temporary

restraining order against Defendants Gavin Newsom, in his official capacity as

Governor of California; Xavier Becerra, in his official capacity as Attorney General of

California; Erin Gustafson, in her official capacity as the San Bernardino County

Acting Public Health Officer; John McMahon, in his official capacity as the San

Bernardino County Sheriff; Robert A. Lovinggood, in his official capacity as a San

Bernardino County Supervisor; Janice Rutherford, in her official capacity as a San

Bernardino County Supervisor; Dawn Rowe, in her official capacity as a San

Bernardino County Supervisor; Curt Hagman, in his official capacity as a San

Bernardino County Supervisor; Josie Gonzales, in his official capacity as a San

Bernardino County Supervisor; Cameron Kaiser, in his official capacity as the

Riverside County Public Health Officer; George Johnson, in his official capacity as

the Riverside County Executive Officer and Director of Emergency Services; Chad

Bianco, in his official capacity as the Riverside County Sheriff; Kevin Jeffries, in his

official capacity as a Riverside County Supervisor; Karen Spiegel, in her official

capacity as a Riverside County Supervisor; Chuck Washington, in his official capacity

as a Riverside County Supervisor; V. Manuel Perez, in his official capacity as a

Riverside County Supervisor; and Jeff Hewitt, in his official capacity as a Riverside

County Supervisor (“Defendants”), and for the issuance of an order to show cause

why a preliminary injunction should not issue, as follows:

1. Defendants, as well as their agents, employees, and successors in office,

shall be restrained and enjoined from enforcing, attempting to enforce, threatening to

enforce, or otherwise requiring compliance with any prohibition on Plaintiffs’

engagement in religious services, practices, or activities at which the Center for

Disease Control’s social distancing guidelines are followed.


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2. Defendants shall show cause, at a time and place to be directed by the

Court, why a preliminary injunction should not issue requiring Defendants to act as

described in above; the temporary restraining order shall remain effective until such

time as the Court has ruled on whether a preliminary injunction should issue.

This Application is made on the grounds that Plaintiffs are likely to succeed on

the merits of this case, they will suffer irreparable harm without injunctive relief, the

balance of equities tips sharply in their favor, and the relief sought is in the public

interest.

Good cause exists to issue the requested Order to preserve Plaintiffs’ rights

under the Constitution of the United States and the Constitution of the State of

California, and to avoid irreparable harm to those rights. This Application is supported

by the accompanying Memorandum of Points and Authorities, by Plaintiffs’ Verified

Complaint, and all exhibits attached thereto, by the declarations of Plaintiffs and their

counsel, Mark P. Meuser, and all exhibits attached thereto, and by such further

argument and evidence that may be adduced at any hearing on this matter or of which

the Court may take judicial notice.

The Verified Complaint in this action was filed on April 13, 2020; this

Application followed. All papers relating to this Application will be delivered by

email to the Defendants’ counsel by 4:00 p.m. on April 14. As reflected in the

accompanying declaration of Mark P. Meuser, Plaintiffs have notified the Office of

the California Attorney General and county counsel for San Bernardino and Riverside

Counties, informing counsel of Plaintiffs’ intention to file this Application and to seek

a temporary restraining order of the nature described above.

Plaintiffs request that the Court waive any bond requirement, because enjoining

Defendants from unconstitutionally prohibiting religious practices will not financially

affect Defendants.

//


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Respectfully submitted,

Date: April 14, 2020 DHILLON LAW GROUP INC.

By: /s/ Harmeet K. Dhillon HARMEET K. DHILLON (SBN: 207873) [email protected] MARK P. MEUSER (SBN: 231335)

[email protected] GREGORY R. MICHAEL (SBN: 306814) [email protected] DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, California 94108 Telephone: (415) 433-1700 Attorneys for Plaintiffs


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TABLE OF CONTENTS

U.S. Attorney General William Barr Issues Statement on Religious Practice and Social Distance .................................................................................................. 1

On April 14, 2020, U.S. Attorney General William Barr issued the following statement: ........................................................................................................... 1

INTRODUCTION ........................................................................................................ 1

RELEVANT FACTUAL BACKGROUND ................................................................ 2

LEGAL STANDARD .................................................................................................. 7

ARGUMENT ............................................................................................................... 9

I. PLAINTIFFS ARE ENTITLED TO TEMPORARY AND PRELIMINARY INJUNCTIVE RELIEF. .................................................. 9

A. There Is a Strong Likelihood Plaintiffs’ Will Succeed in Proving Their Claims on Multiple Constitutional Grounds. ............................ 9

1. Defendants’ Ban on Communal Religious Worship Violates the First Amendment’s Free Exercise Clause and California Constitution Article 1, Section 4. .................................................. 9

2. The Orders Violate the Establishment Clause of the First Amendment. ................................................................................ 11

3. Defendants Violate Plaintiffs’ Free Speech Rights. .................... 12

4. The Orders Ban All Public and Private Assembly in Violation of the First Amendment to the U.S. Constitution and California Constitution. ................................................................................ 15

5. Defendants’ Orders Are Void for Reasons of Vagueness. .......... 16

6. The Orders Violate Plaintiffs’ Substantive Due Process Rights Under the Fourteenth Amendment. ............................................. 17

7. The Orders Violate Article 1, Section 1 of the California Constitution. ................................................................................ 18

8. Defendants Violate the Equal Protection Clause of the Fourteenth Amendment. ................................................................................ 20

B. Plaintiffs Face Imminent Irreparable Harm Absent Immediate Injunctive Relief ............................................................................... 21

C. The Balance of Hardships Tips Decidedly in Plaintiffs’ Favor. ...... 22


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D. Injunctive Relief Is in the Public Interest ......................................... 23

II. THE COURT SHOULD DISPENSE WITH ANY BOND REQUIREMENT ....................................................................................... 23

CONCLUSION .......................................................................................................... 24


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TABLE OF AUTHORITIES

Case Page(s)

UNITED STATES CONSTITUTION

U. S. Const. amend. I. .............................................................................................. 9, 13

U.S. Const. amend. XIV, § 1. ....................................................................................... 20

CALIFORNIA CONSTITUTION

Cal. Const. art. 1, § 1. ................................................................................................... 19

Cal. Const. art. 1, § 2. ............................................................................................. 12, 13

Cal. Const. art. 1, § 3. ................................................................................................... 15

Cal. Const. art. 1, § 4. ............................................................................................... 9, 10

CASES

All. for Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)................................................................................... 8

Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019). ........................................................................................... 12

Americans for Prosperity Foundation v. Harris, 182 F. Supp. 3d 1049 (C.D. Cal. 2016). ........................................................... 22, 23

Aptheker v. Secretary of State, 378 U.S. 500 (1964). ............................................................................................... 18

Bible Club v. Placentia-Yorba Linda School Dist., 573 F. Supp. 2d 1291 (C.D. Cal. 2008). ................................................................. 24

Cantwell v. Connecticut, 310 U.S. 296 (1940). ............................................................................................... 10

Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527 (2004) .............................................................................................. 9

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). ............................................................................................... 10

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985). ............................................................................................... 20


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College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007). ..................................................... 21, 22, 23

Connally v. General Const. Co., 269 U.S. 385 (1926). ............................................................................................... 16

De Jonge v. Oregon, 299 U.S. 353 (1937). ............................................................................................... 15

Dennis v. Higgins, 498 U.S. 439 (1991). ................................................................................................. 9

Doctor John’s, Inc. v. Sioux City, 305 F. Supp. 2d 1022 (N.D. Iowa 2004). ................................................................ 24

Duncan v. Louisiana, 391 U.S. 145 (1968). ............................................................................................... 17

Dunn v. Blumstein, 405 U.S. 330 (1972). ......................................................................................... 15, 18

Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291 (9th Cir. 2003)................................................................................... 8

Eisenstadt v. Baird, 405 U.S. 438 (1972). ............................................................................................... 18

Elrod v. Burns, 427 U.S. 347 (1976). ............................................................................................... 21

Epperson v. Arkansas, 393 U.S. 97 (1968) .................................................................................................. 11

Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947). ................................................................................................... 11

Ex parte Arta, 52 Cal. App. 380 (1921).......................................................................................... 20

Ex parte Martin, 83 Cal. App. 2d 164 (1948)..................................................................................... 19

Fantasyland Video, Inc. v. Cty. of San Diego, 496 F.3d 1040 (9th Cir. 2007)................................................................................. 12

Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423 (1974). ................................................................................................. 8

Grayned v. City of Rockford, 408 U.S. 104 (1972). ............................................................................................... 16


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Griswold v. Connecticut, 381 U.S. 479 (1965). ............................................................................................... 18

Houston v. Hill, 482 U.S. 451 (1987). ............................................................................................... 14

IDK, Inc. v. Clark Cnty., 836 F.2d 1185 (9th Cir. 1988)........................................................................... 13, 14

In re J.M., 36 Cal. App. 5th 668 (2019). .................................................................................. 13

Jew Ho v. Williamson, 103 F. 10 (C.C. Cal. 1900). ..................................................................................... 19

Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003)................................................................................... 24

Ketchum v. Alameda Cnty., 811 F.2d 1243 (9th Cir. 1987)................................................................................... 9

Lemon v. Kurtzman, 403 U. S. 602 (1971). .............................................................................................. 12

Los Angeles All. For Survival v. City of Los Angeles, 22 Cal. 4th 352 (2000). ........................................................................................... 13

Maher v. Roe, 432 U.S. 464 (1977). ............................................................................................... 18

Maynard v. U.S. Dist. Court for Cent. Dist. of California, 915 F.2d 1581 (9th Cir. 1990)................................................................................. 21

Maynard v. U.S. Dist. Court for the Cent. Dist. of California, 701 F. Supp. 738 (C.D. Cal. 1988). ........................................................................ 21

McCreary Cnty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005). ............................................................................................... 11

Memorial Hospital v. Maricopa Cnty., 415 U.S. 250 (1974). ......................................................................................... 18, 21

Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). ................................................................................................. 9

People ex rel. Gallo v. Acuna, 14 Cal.4th 1090 (1997). .......................................................................................... 16

People v. Chambers, 22 Cal. App 2d 687 (1937)...................................................................................... 15


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S.O.C., Inc. v. Cnty. of Clark, 152 F.3d 1136 (9th Cir. 1998)................................................................................. 21

Sammartano v. First Jud. Dist. Ct., 303 F.3d 959 (9th Cir. 2002)............................................................................. 21, 23

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). ................................................................................................... 15

Sessions v. Dimaya, 138 S. Ct. 1204 (2018). ........................................................................................... 16

Shapiro v. Thompson, 394 U.S. 618 (1969). ............................................................................................... 18

Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009)................................................................................. 22

Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015)................................................................................. 10

Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832 (9th Cir. 2001)..................................................................................... 8

Whitney v. California, 274 U.S. 357 (1927). ............................................................................................... 15

Widmar v. Vincent, 454 U.S. 263 (1981). ......................................................................................... 13, 14

Wilson v. Superior Court, 13 Cal.3d 652 (1975). ............................................................................................. 13

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). ..................................................................................................... 8

Wong Wai v. Williamson, 103 F. 1 (C.C. Cal. 1900). ....................................................................................... 19

STATUTES

42 U.S.C. § 1983. ..................................................................................................... 9, 12

RULES

Fed. R. Civ. P. 65. 8


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MEMORANDUM OF POINTS AND AUTHORITIES

U.S. Attorney General William Barr Issues Statement

on Religious Practice and Social Distance

On April 14, 2020, U.S. Attorney General William Barr issued the following

statement:

…As we explain in the Statement of Interest, where a state has not acted

evenhandedly, it must have a compelling reason to impose restrictions on

places of worship and must ensure that those restrictions are narrowly

tailored to advance its compelling interest. While we believe that during

this period there is a sufficient basis for the social distancing rules that

have been put in place, the scope and justification of restrictions beyond

that will have to be assessed based on the circumstances as they evolve.

Religion and religious worship continue to be central to the lives of

millions of Americans. This is true more so than ever during this

difficult time. The pandemic has changed the ways Americans live their

lives. Religious communities have rallied to the critical need to protect

the community from the spread of this disease by making services

available online and in ways that otherwise comply with social distancing

guidelines.

The United States Department of Justice will continue to ensure that

religious freedom remains protected if any state or local government, in

their response to COVID-19, singles out, targets, or discriminates against

any house of worship for special restrictions.

Meuser Dec., Ex. 8.

INTRODUCTION

The United States and California Constitutions do not contain blanket

exceptions for pandemics, and neither may California’s lawmakers ignore

fundamental Constitutional norms on the basis of a health crisis. In a knee-jerk

response to the coronavirus pandemic, at a time when people of faith around the

world have a greater need than ever for spiritual solace, Defendants have


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criminalized communal worship across California. While protecting the health and

safety of the public during this crisis is certainly critically important—to Plaintiffs

also—that interest may not be secured by abrogating the rights and liberties

enshrined by the U.S. and California Constitutions.

Despite declarations of national, state, and local emergencies surrounding the

coronavirus outbreak, Defendants have decided to allow “essential” businesses (as

determined by Defendants on an ad hoc basis) to continue operations provided that

certain social distancing guidelines are followed. For example, Defendants permit

marijuana dispensaries, fast food restaurants, and laundromats to continue

operations, subject to these restrictions. Statewide, the news media have been

permitted to continue operations.

Churches and religious services, however, have not made Defendants’ cut.

Instead, Defendants insist that all religious worship take place only at home, by live-

streaming, apparently assuming that all Californians have access to high-speed

internet, computer equipment, a desire to add intrusive, data-collecting apps to their

computer devices, and the willingness to suspend a lifetime of worship practices at

the command of the government. The United States and California Constitutions

simply do not tolerate such arbitrary and discriminatory restrictions thrust upon

fundamental rights while less restrictive measures are available and are being

allowed for entities the Government deems “essential.” This Court should

immediately enjoin Defendants from further violating Plaintiffs’ religious liberty by

ascribing second-class status to faith practices.

RELEVANT FACTUAL BACKGROUND

On March 13, 2020, President Donald J. Trump proclaimed a National State of

Emergency as a result of the threat of the emergence of a novel coronavirus, COVID-

19. Verified Complaint [dkt. #1-1] (“Compl.”), ¶ 28. Since the initial outbreak of

COVID-19 in the United States in February and March 2020, the federal

government’s projections of the anticipated national death toll related to the virus has


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decreased substantially, by an order of magnitude. Despite such revisions, Defendants

have increasingly restricted—where not outright banned— Plaintiffs’ engagement in

constitutionally-protected activities. Compl., ¶ 29.

On March 4, 2020, California Governor Gavin Newsom proclaimed a State of

Emergency as a result of the threat of COVID-19. Compl., ¶ 30. On March 19, 2020,

California Governor Newsom issued Executive Order N-33-20 in which he ordered

“all residents are directed to immediately heed the current State public health

directives.” Compl., ¶ 31. The state public health directive requires “all individuals

living in the State of California to stay home or at their place of residence except as

needed to maintain continuity of operations of the federal critical infrastructure sectors

…”. Compl., ¶ 32. The public health directive provides that its directives “shall stay in

effect until further notice.” Compl., ¶ 35.

On March 22, 2020, the California Public Health Officer designated a list of

“Essential Critical Infrastructure Workers.” Included on the list of the “essential

workforce” are “faith based services that are provided through streaming or other

technology.” Compl., ¶ 33. The California state decree prohibits all religious leaders

from conducting in-person and out-of-home religious services, regardless of measures

taken to reduce or eliminate the risk of the virus spreading, such as offering socially

distanced seating for family units, mask and glove requirements, or drive-in-only

services. Meanwhile, the list deems the continuity of services provided by coffee

baristas, burger flippers, and laundromat technicians to be so necessary for society that

these activities are permitted to continue under the State Order, despite the existence

of the very same risk Defendants rely on to inhibit the exercise of fundamental First

Amendment rights. Compl., ¶ 34.

On or about April 7, 2020, Dr. Erin Gustafson signed the San Bernardino Order.

Compl., ¶ 36. This Order “allow[s] faith based services that are provided through

streaming or other technology, while individuals remain in their homes, but does not

allow individuals to leave their home for driving parades or drive-up services, or for


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picking up non-essential items.” Compl., ¶ 37. It also states that any violation “is a

crime punishable by fine, imprisonment, or both.” Compl., ¶ 39. The Order states that

it will remain in effect “until rescinded.” Compl., ¶ 40.

On April 8, 2020, San Bernardino County released a document on their website

titled “Clarification of religious services and face-covering order” (hereinafter

Clarification”). The Clarification is not signed by the Public Health Officer nor does it

revoke the April 7th Order. Compl., ¶ 44-45. It states “[o]n the subject of enforcement,

the public is advised that although violation of a health order is a violation of the

California Health and Safety Code, the County does not expect law enforcement to

broadly impose citations on violators.” Compl., ¶ 46. The Clarification does not

revoke law enforcement authority to criminally charge any individual who violates the

San Bernardino Order. Compl., ¶ 47.

Defendants have granted law enforcement unfettered discretion when deciding

whether or not to enforce the San Bernardino Order. Compl., ¶ 48. The Clarification

states that the “specific reference to drive-in religious service so close to major

religious observances taking place during the next four days, for which organizations

had already conducted considerable planning and incurred expenses, are clarified as

follows: Organizations that have planned such services for the coming weekend

should proceed with those services if they choose to do so and make every effort to

prevent contact between congregants.” Compl., ¶ 49.

Patrick Scales’ church, Shield of Faith Family Church, Inc., is located in San

Bernardino County. Compl., ¶ 51. He desires to hold in-person religious services for

those congregants who desire to attend church. Compl., ¶ 52. Scales believes that he

can hold such religious services and abide by social distancing tips recommended by

the CDC by keeping congregants at least six feet apart, and provide for the wearing of

masks and gloves. Compl., ¶ 53. He believes that religious services are essential for

the spiritual health of the congregation so that the congregants can exhort one another

during these difficult times. Compl., ¶ 54. Scales recognizes that most of his


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congregants will stay at home, but he wants to be available for those who are healthy

and feel that in-person church service can be safely attended with social distancing

and other measures. Compl., ¶ 55.

Wendy Gish attends Shield of Faith Family Church and would attend an in-

person church service should it be made available to her. Compl., ¶ 56. She regularly

attends church services and believes that she has a scriptural command to “not neglect

meeting together.” Compl., ¶ 57. To her knowledge, Gish has never had or contracted

said coronavirus; she has never been at any time exposed to the danger of contracting

it and has never been in close proximity to any locality where said coronavirus has or

have existed. Compl., ¶ 58. As a result of not being able to attend in-person church,

she has been deprived of the opportunity for important cultural, social, and religious

activities, including speech activities pertaining to the coronavirus outbreak and the

government’s response. Compl., ¶ 59.

As of April 11, 2020, San Bernardino County has eight hundred ten (810)

coronavirus cases and twenty-five (25) COVID-19 associated deaths, according to

information posted on the county’s website. Compl., ¶ 60. The United States Census

estimates that as of July 1, 2019, San Bernardino County’s population is 2,180,085

people. Compl., ¶ 61.

On or about April 6, 2020, Dr. Cameron Kaiser and George Johnson signed the

Riverside Order. Compl., ¶ 62. It prohibits “[a]ll public or private gatherings . . .

including, but not limited to an auditorium, . . . church, . . . or any other indoor or

outdoor space used for any non-essential purpose including, but not limited to . . .

church . . . .” Compl., ¶ 63. Exempted from its prohibition on public or private

gatherings are numerous services, industries, and activities, including: “courts of law,

medical providers . . . daycare and child care . . . [and] necessary shopping at fuel

stations, stores or malls,” provided that a “state and federal guidelines for infection

control” are observed. Compl., ¶ 64. The Riverside Order provides that “[a]ll essential

business that remain in operation . . . shall follow the Social Distancing and Infection


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Control Guidelines published by the [Center for Disease Control] and California

Department of Public Health . . . or the facility shall be closed.” Compl., ¶ 65. The

Order expressly states that any violation “is a crime publishable by fine,

imprisonment, or both.” Compl., ¶ 67.

On April 10, 2020, Riverside County issued a press release in which they stated

that “Drive-up church services that practice proper social distancing will be allowed

this weekend in Riverside County, although the order to prohibit such activates will

remain after Easter Sunday.” Compl., ¶ 71. The April 10th clarification was issued by

George Johnson. Compl., ¶ 72.

James Moffatt’s church, “Church Unlimited” is located in Riverside County.

Compl., ¶ 73. Upon learning about the coronavirus, he immediately had his church

building cleaned and disinfected. Compl., ¶ 74. Moffatt ensured that sanitizing

materials were available to each person who entered his church and encouraged family

units to sit at least six feet apart. Compl., ¶ 75. He encouraged anyone who was

uncomfortable with gathering during coronavirus to stay at home. Compl., ¶ 76. He

also encouraged anyone who was sick to stay at home. Compl., ¶ 77.

On April 9, 2020, Moffatt was fined $1,000 for violating the Riverside Order

for holding a church service on April 5, 2020, Palm Sunday. Compl., ¶ 78. To his

knowledge, he has never had or contracted the coronavirus; he has never been at any

time exposed to the danger of contracting it; and has never been in close proximity to

any locality where said coronavirus has or have existed. Compl., ¶ 79. But for the

Riverside Order and Defendants’ enforcement thereof, Moffatt would continue to hold

in-person religious services in Riverside County, while taking the same social

distancing precautions taken by “essential businesses” that Defendants continue to

allow to operate in the county, despite any prevalence of COVID-19. He believes that

it is important for Christians to come together, remember, and celebrate all that Jesus

has done for this world. Compl., ¶ 80. As a result of not being able to conduct an in-

person church service, Moffatt has been deprived of the opportunity for important


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cultural, socials, and religious activities, including speech activities pertaining to the

coronavirus outbreak and the government’s response. Compl., ¶ 81.

Brenda Wood’s church, Word of Life Ministries International Inc. is located in

Riverside County. Compl., ¶ 82. Word of Life Ministries International Inc. has

approximately 20-30 regular attendees. Compl., ¶ 83. Wood believes Scripture

commands her to provide opportunities for the believers to obey Hebrews 10:25 where

the believers meet together and encourage one another. Compl., ¶ 84.

Wood held a drive-up church service on Easter Sunday. Compl., ¶ 85. The

drive-up church service provided appropriate social distancing, with everyone wearing

masks and staying in their vehicles. The restrooms were not made available. Each car

was parked at least six feet from other vehicles. Compl., ¶ 86. During the service,

Wood used a portable sound amplification system. The congregants had to roll down

their windows in order to listen. Compl., ¶ 87. During the service, communion was

served by an individual wearing a mask and gloves and the elements were pre-

packaged. The person serving communion used tongs to remove the communion cups

from the pre-packaged box. Compl., ¶ 88. At this time, Wood has postponed all

baptisms at her church. Compl., ¶ 89. She would like to hold drive-up church services

every Sunday following safe social distancing practices until the state of emergency

has been lifted. Compl., ¶ 89.

As of April 11, 2020, Riverside County has one thousand four hundred thirty-

one (1,431) coronavirus cases and forty-one (41) coronavirus associated deaths,

according to information posted on the county’s website. Compl., ¶ 91. The United

States Census estimates that as of July 1, 2019, Riverside County’s population is

2,470,546 people. Compl., ¶ 92.

LEGAL STANDARD

A temporary restraining order preserves the status quo and prevents irreparable

harm until a hearing can be held on a preliminary injunction application. See Granny

Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423,


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439 (1974). A temporary restraining order may be issued without providing the

opposing party an opportunity to be heard where “specific facts in an affidavit or a

verified complaint clearly show that immediate and irreparable injury, loss, or damage

will result to the movant before the adverse party can be heard in opposition,” and

“the movant’s attorney certifies in writing any efforts made to give notice and the

reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1).

The standards for issuing a temporary restraining order and a preliminary

injunction are the same. See, e.g., Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush &

Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). The Ninth Circuit has established two

sets of criteria for evaluating a request for injunctive relief. Earth Island Inst. v.

United States Forest Serv., 351 F.3d 1291, 1297 (9th Cir. 2003). Under the

“traditional” criteria, a plaintiff must show (1) a strong likelihood of success on the

merits, (2) a likelihood of irreparable injury to plaintiff if preliminary relief is not

granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the

public interest. See, e.g., Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

(2008). Alternatively, a temporary restraining order or preliminary injunction may be

appropriate when a movant raises “serious questions going to the merits” and the

“balance of hardships tips sharply in the plaintiff’s favor,” provided that the plaintiff is

able to show there is a likelihood of irreparable injury and that the injunction is in the

public interest. All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

//

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ARGUMENT

I. PLAINTIFFS ARE ENTITLED TO TEMPORARY AND PRELIMINARY INJUNCTIVE RELIEF.

A. There Is a Strong Likelihood Plaintiffs’ Will Succeed in Proving Their Claims on Multiple Constitutional Grounds.

1. Defendants’ Ban on Communal Religious Worship Violates the First Amendment’s Free Exercise Clause and California Constitution Article 1, Section 4.

As Plaintiffs’ first and eleventh causes of action, they assert facial and as-

applied challenges pursuant to (1) 42 U.S.C. Section 1983 on the grounds that

Defendants’ Orders violate the Free Exercise Clause of the First Amendment to the

U.S. Constitution, and (2) state law on the grounds that the Orders violate Article 1,

Section 4 of the California Constitution.1 See Catholic Charities of Sacramento, Inc. v.

Superior Court, 32 Cal. 4th 527, 562 (2004) (implicitly recognizing state law claim

for violations of Art. 1, Section 4 of the California Constitution); Ketchum v. Alameda

Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987) (a cause of action arises under Section

1983 where “(1) the conduct that harm[ed] [Plaintiffs] [was] committed under color of

state law (i.e. state action), and (2) the conduct . . . deprive[d] [Plaintiffs] of a

constitutional right.”); Dennis v. Higgins, 498 U.S. 439 (1991) (The rights guaranteed

by Section 1983 are to be “liberally and beneficently construed.”) (quoting Monell v.

Dept. of Soc. Servs., 436 U.S. 658, 684 (1978)).2

The First Amendment to the U.S. Constitution prohibits government actors

from enforcing any “law respecting an establishment of religion, or prohibiting the

free exercise thereof.” U. S. Const. amend. I; see also Cantwell v. Connecticut, 310

1 Defendants cannot credibly contest that the issuance and enforcement of the Orders

by Defendants in their official capacities constitute state action. Accordingly, the

likelihood of Plaintiffs’ success turns on whether Defendants deprived Plaintiffs of a

constitutional right. As discussed herein, Plaintiffs have amply established such

deprivations.


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U.S. 296, 303 (1940) (applying the First Amendment to the States through the

Fourteenth Amendment). The California Constitution similarly protects the “[f]ree

exercise and enjoyment of religion without discrimination or preference.” Cal. Const.,

art. I, § 4; see also Catholic Charities of Sacramento, Inc., 32 Cal. 4th at 562.

As the Supreme Court has noted, “a law burdening religious practice that is not

neutral or not of general application must undergo the most rigorous of scrutiny.”

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993). “A law

is not generally applicable if its prohibitions substantially underinclude non-

religiously motivated conduct that might endanger the same governmental interest that

the law is designed to protect.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 (9th

Cir. 2015) (citing Lukumi, 508 U.S. at 542–46). “In other words, if a law pursues the

government’s interest ‘only against conduct motivated by religious belief,’ but fails to

include in its prohibitions substantial, comparable secular conduct that would

similarly threaten the government’s interest, then the law is not generally applicable.”

Id.

The Orders are neither neutral nor of general application. Defendants’

restrictions have specifically and explicitly targeted religious and “faith-based”

services and are thus not neutral on their face. Defendants have prohibited certain

public and private gatherings deemed “non-essential,” including out-of-home religious

services, while exempting a laundry list of industries and services purportedly

“essential” to the government’s various interests, including medical cannabis

dispensaries and other medical providers, courts, public utilities, daycare and

childcare, and “necessary” shopping. Further, several Defendants have granted ad hoc

exemptions to the Orders for particular religious gatherings of particular faiths – i.e.,

Christians permitted to celebrate Easter, but not for other gatherings or other faiths.

Defendants’ mandates are not “narrowly tailored” to further any compelling

governmental interest. Defendants have granted numerous special exemptions to their

bans on public gatherings and conduct, including for purportedly “essential”


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businesses and activities, provided that social distancing practices are observed; and

even for out-of-home religious services during Easter, an important day of religious

significance for Christians. Since these gatherings may be permitted, there can be no

doubt that Defendants may, and therefore must, permit Plaintiffs to engage in

equivalent religious activities and services provided that Plaintiffs also adhere to the

social distancing guidelines currently in place.

Requiring Plaintiffs to abstain from religious gatherings, despite substantial

modifications to satisfy the public health interests at stake, violates Plaintiffs’

Constitutional right to free exercise of religion. The state does not have the power

under our Constitutional scheme to decree that as to faith activities, “streaming” (for

those congregations and parishioners with the wealth and technological acumen to

partake of such truncated substitutes) is “good enough” while at the same time

acknowledging media organizations’ First Amendment rights to freedom of the press.

Because narrower restrictions may be applied to Plaintiffs, while still protecting

legitimate governmental interests, the Orders are unconstitutional and Defendants

should be enjoined.

2. The Orders Violate the Establishment Clause of the First Amendment.

The Orders and Defendants’ enforcement thereof violate the First Amendment,

both facially and as-applied to Plaintiffs. The Establishment Clause of the “First

Amendment mandates governmental neutrality between religion and religion, and

between religion and nonreligion.” McCreary Cnty., Ky. v. Am. Civil Liberties Union

of Ky., 545 U.S. 844, 860 (2005) (citing Epperson v. Arkansas, 393 U.S. 97, 104

(1968)). The Establishment Clause applies to the states through the Due Process

Clause of the Fourteenth Amendment. Everson v. Board of Ed. of Ewing, 330 U.S. 1

(1947).

Under the Lemon test, the courts ask whether the government action (1) has a

clear secular purpose; (2) has a “principal or primary effect” that “neither advances


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nor inhibits religion”; and (3) does not foster “an excessive government entanglement

with religion.” Lemon v. Kurtzman, 403 U. S. 602 (1971); but see Am. Legion v. Am.

Humanist Ass’n, 139 S. Ct. 2067 (2019) (writing for the plurality, Justice Samuel

Alito refused to apply the Lemon test to a religious-display case, but failed to garner

majority support for any other test).

Defendants have not and do not act with a clearly secular purpose in adopting

and enforcing the Orders. The Orders are ambiguous in scope and application,

granting law enforcement unfettered discretion in deciding what conduct shall

constitute a crime, and what conduct is “essential,” and therefore permissible. This

discretion has already been exercised by government officials to temporarily exempt

specific faiths (namely, Christians) from compliance with the Orders during Easter. It

is not for Defendants to determine which faiths, and on which days of religious

significance to those faiths, religious services may take place.

The Orders and Defendants’ ad hoc enforcement thereof have the primary

effect of inhibiting religious activity. Indeed, the Orders expressly prohibit religious

services unless practiced within the home, by live-streaming. As a result, Defendants

have also failed to avoid excessive government entanglement with religion.

Defendants permit only some forms of religious observance, while disallowing all

communal worship. Thus, the Court should grant this Application and enjoin further

enforcement of the Orders.

3. Defendants Violate Plaintiffs’ Free Speech Rights.

As Plaintiffs’ third and ninth causes of action, they assert facial and as-applied

challenges pursuant to (1) 42 U.S.C. Section 1983 on the grounds that Defendants’

Orders violate the Free Speech Clause of the First Amendment to the U.S.

Constitution, and (2) state law on the grounds that the Orders violate Article 1,

Section 2 of the California Constitution. “[T]he California liberty of speech clause is

broader and more protective than the free speech clause of the First Amendment.”

Fantasyland Video, Inc. v. Cty. of San Diego, 496 F.3d 1040, 1042 (9th Cir. 2007).


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However, in some areas, the protection afforded by the California liberty of speech

clause is coterminous with that provided by the federal Constitution. Los Angeles All.

For Survival v. City of Los Angeles, 22 Cal. 4th 352, 367, n.12 (2000). California

courts treat the prior restraint and overbreadth doctrine similarly to federal courts. See

Wilson v. Superior Court, 13 Cal.3d 652, 658-62 (1975) (relying mostly on federal

citations to analyze prior restraint doctrine under California Constitution); In re J.M.,

36 Cal. App. 5th 668, 680 (2019) (citing some federal cases and paralleling

overbreadth doctrine analysis under California Constitution with that under the U.S.

Constitution).

The Orders—by acting as a prior restraint to protected speech—are

unconstitutional facially and as-applied because they impermissibly burden Plaintiffs’

right to freedom of speech under the First Amendment and California Constitution,

Article 1, Section 2. See IDK, Inc. v. Clark Cnty., 836 F.2d 1185, 1191 (9th Cir. 1988)

(stating that a law is facially unconstitutional if it impermissibly burdened the

plaintiff’s rights, such as in the case of a prior restraint); U.S. Const., amend. I; Cal.

Const., art. I, § 2. The term prior restraint is used “to describe administrative and

judicial orders forbidding certain communications when issued in advance of the time

that such communications are to occur.” Alexander v. United States, 509 U.S. 544,

550 (1993) (citation omitted). “Religious worship and discussion are protected speech

under the First Amendment.” Widmar v. Vincent (“Widmar”), 454 U.S. 263, 269, n. 6

(1981).

Here, the Orders, with the exception of Easter, ban all in-person, religious

meetings by excluding faith-based services from a list of essential businesses, and

prohibiting people from going outside their homes. Compl. at ¶¶ 31-50, 62-71. The

Orders were issued before the protected speech was to occur because they prohibit

congregating to engage in protected speech for the foreseeable future. Accordingly,

the Orders are facially unconstitutional because they act as a prior restraint to

protected speech: religious services.


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The Orders are also facially unconstitutional on the separate basis that they are

substantially overbroad. See IDK, Inc., 836 F.2d at 1191 (stating that a law is facially

unconstitutional if it impermissibly burdens the rights of third parties, such as in the

case of an unconstitutionally overbroad law). “Substantial overbreadth” is shown not

where one shows that he can conceive of some impermissible applications of the

order, but where one can show a significant number of situations where an order could

be applied to prohibit constitutionally protected speech. Houston v. Hill (“Houston”),

482 U.S. 451 (1987) (ordinance--outlawing interruption of police officers while

carrying out their duties--was unconstitutionally overbroad because it criminalized

substantial amount of constitutionally protected speech and allowed police unfettered

discretion in enforcement of the ordinance).

Here, the purpose of the Orders is to slow the transmission rate of the COVID-

19 pandemic in California and its counties. However, it virtually eliminates all in-

person, religious meetings (Compl. ¶¶ 37-39, 63-67), a form of protected speech

(Widmar, 454 U.S. at 269, n.6), despite the fact that alternatives, such as drive-in

services, would allow such religious speech without risking transmission. This is a

substantial burden because it covers the protected speech that every Californian who

attends mosques, temples, synagogues, gurdwaras, and churches regularly usually

would enjoy. In their current form, the Orders do not allow drive-in church services;

unsigned clarifications from San Bernardino and Riverside County allowed such

services for Easter, but not for any Sunday thereafter, nor exceptions for other

faiths. Compl. ¶¶ 37, 49-50.

Not only this, but here, akin to Houston, law enforcement officers have

unfettered discretion in enforcing the law because they are provided no standards as to

when to enforce, or exempt some event from, the law. Furthermore, violators of the

Orders are liable for criminal penalties. Compl. ¶¶ 39, 67. Because the Orders

criminalize a substantial amount of protected speech that is unnecessary for their

underlying purpose, and provide law enforcement officers no guidance as to


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enforcement, the Orders are unconstitutionally overbroad, and this Court should grant

injunctive relief.

4. The Orders Ban All Public and Private Assembly in Violation of the First Amendment to the U.S. Constitution and California Constitution.

“The right of free speech, the right to teach, and the right of assembly are, of

course, fundamental rights.” Whitney v. California, 274 U.S. 357, 373 (1927). The

First Amendment of the Constitution protects the “right of the people peaceably to

assemble.” The Freedom of Assembly Clause was incorporated against the states in

De Jonge v. Oregon, 299 U.S. 353 (1937). The California Constitution also protects

the right to freely assemble. See, e.g., Cal. Const. art. 1, § 3; People v. Chambers, 22

Cal. App 2d 687, 706 (1937) (“laws should not infringe upon our guaranteed freedom

of speech and lawful assembly.”). When a government practice restricts fundamental

rights, it is subject to “strict scrutiny” and can be justified only if it furthers a

compelling government purpose and, even then, only if no less restrictive alternative

is available. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17

(1973); Dunn v. Blumstein, 405 U.S. 330 (1972).

The Orders and Defendants’ enforcement thereof violate the First Amendment,

both facially and as-applied to Plaintiffs. By denying Plaintiffs the ability to conduct

services that complies with the CDC guidelines for social distancing, Defendants are

in violation of the Freedom of Assembly Clause. Defendants cannot meet the no-less-

restrictive-alternative test. The CDC’s social distancing guidelines are appropriate to

limit the spread of COVID-19. Imposing more restrictive requirements that target

churches and their drive-in services while at the same time allowing restaurants,

coffee shops, marijuana dispensaries to operate drive-ups is not the least restrictive

means of achieving Defendants’ public safety goals.

Requiring Plaintiffs to abstain from religious gatherings, despite substantial

modifications to satisfy the public health interests at stake (modifications that have


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been deemed acceptable in the cases of operations deemed “essential” by government

decree), violates Plaintiffs’ Constitutional right to peaceably assemble.

5. Defendants’ Orders Are Void for Reasons of Vagueness.

A regulation is constitutionally void on its face when, as matter of due process,

it is so vague that persons “of common intelligence must necessarily guess at its

meaning and differ as to its application.” Connally v. General Const. Co., 269 U.S.

385, 391 (1926); People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 1115 (1997). Vague

laws “trap the innocent by not providing fair warning.” Grayned v. City of Rockford,

408 U.S. 104, 108–109 (1972). If “arbitrary and discriminatory enforcement is to be

prevented, laws must provide explicit standards for those who apply them.” Id. The

problem with a vague regulation is that it “impermissibly delegates basic policy

matters to policemen, judges, and juries for resolution on an ad hoc and subjective

basis with the attendant dangers of arbitrary and discriminatory application.” Id.; see

also Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018).

The Orders at issue in this case are so vague as to their scope and application as

to run afoul of the Due Process Clause of the Fourteenth Amendment. Embedded

within the State Order is a public health directive to shelter in place. The State Order

itself merely orders the public to “heed” the public health directive, it does not appear

to order compliance therewith; Webster’s Dictionary defines the word “heed” to mean

“to give consideration or attention to”—not to “adhere” or comply. Despite this, state

and local officials and the media have widely reported the State Order to require

compliance with the public health directive by sheltering in place. The San Bernardino

and Riverside Orders, for example, both state this.3 Complt. Ex. 2, ¶ 2; Ex. 3, ¶ 1

3 The New York Times, for example, reported that “Gov. Gavin Newsom of

California on Thursday ordered Californians—all 40 million of them—to stay in their

houses….” As of the date of this filing, the article is available online at the following

URL: https://www.nytimes.com/2020/03/19/us/California-stay-at-home-order-

virus.html.


https://www.nytimes.com/2020/03/19/us/California-stay-at-home-order-virus.html

https://www.nytimes.com/2020/03/19/us/California-stay-at-home-order-virus.html

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(“Executive Order N-33-20 issued by the Governor of the State of California . . .

ordered all individuals living in the State of California to stay home . . . .”). Given this

ambiguity, neither Plaintiffs nor any other reasonable person can understand precisely

what is being ordered, and what actions may result in criminal penalties, fines, or

imprisonment. As such, the State Order is void for vagueness.

The San Bernardino and Riverside Orders, and Defendants enforcement thereof,

muddle the issue further. None of the Orders exempt specific religious holidays.

Nevertheless, San Bernardino County explicitly exempted compliance during Easter

weekend, only. Meuser Decl., Ex. 5. San Bernardino County officials have also stated

that it “does not expect law enforcement to broadly impose citations on violators” and

that “the expectation is that law enforcement will rely upon community members to

use good judgment, common sense, and act in the best interest of their own health and

the health of their loved ones and the community at large.” Meuser Decl., Ex. 2. In

apparent self-contradiction, the Riverside Order states that “non-essential personnel . .

. are prohibited from entry into any hospital or long-term care facility,” ostensibly

banning “non-essential” people from seeking medical care. Complt., Ex. 3. Yet, that

same Order states that “visitors” may be permitted access to hospitals under certain

conditions. Complt., Ex. 3.

No reasonable person can make sense of what conduct is permitted under the

Orders and what conduct will result in criminal penalties.

6. The Orders Violate Plaintiffs’ Substantive Due Process Rights Under the Fourteenth Amendment.

The Orders and Defendants’ enforcement thereof violate Plaintiffs’ substantive

due process rights secured by the Fourteenth Amendment to the U.S. Constitution.

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive

any person of life, liberty, or property, without due process of law.” The fundamental

liberties protected by this Clause include most of the rights enumerated in the Bill of

Rights. See Duncan v. Louisiana, 391 U.S. 145, 147–149 (1968). In addition, these


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liberties extend to certain personal choices central to individual dignity and autonomy,

including intimate choices that define personal identity and beliefs. See, e.g.,

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v. Connecticut, 381 U.S. 479,

484–486 (1965).

Plaintiffs’ rights to freedom of religion, assembly, speech, and travel are

fundamental rights protected by the U.S. Constitution. See, e.g., Aptheker v. Secretary

of State, 378 U.S. 500, 520 (1964); Kent v. Dulles, 357 U.S. 116, 127 (1958). When a

government practice restricts fundamental right, as is the case here, it is subject to

“strict scrutiny” and can be justified only if it furthers a compelling government

purpose, and, even then, only if no less restrictive alternative is available. See, e.g.

Memorial Hospital v. Maricopa Cnty., 415 U.S. 250, 257-258 (1974); Dunn, 405 U.S.

at 339-341; Shapiro v. Thompson, 394 U.S. 618, 660 (1969); Maher v. Roe, 432 U.S.

464, 488 (1977).

Strict scrutiny applies to Plaintiffs’ claims because all three Orders mandate that

Plaintiffs stay at home because Plaintiffs desired actions are not deemed essential,

impinging on their fundamental rights to freedom of religion, assembly, speech, and

travel. Defendants’ mandates are not “narrowly tailored” to further any compelling

governmental interest. Defendants’ have granted numerous special exemptions to their

bans on public gatherings, including for purportedly “essential” businesses and

activities, provided that social distancing practices are observed; and even for out-of-

home religious services during Easter. Since these gatherings can be permitted, there

can be no doubt that Defendants may, and therefore must, permit Plaintiffs to engage

in equivalent constitutionally-protected activities provided that Plaintiffs also adhere

to the social distancing guidelines.

7. The Orders Violate Article 1, Section 1 of the California Constitution.

All Californians “are by nature free and independent and have inalienable

rights. Among these are enjoying and defending life and liberty, acquiring, possessing,


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and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Cal. Const. art. 1, § 1. Understanding the basic fundamental right of liberty, California

courts have held that Public Health Officials’ authority is limited. Before exercising

their full powers to quarantine, there must be “reasonable grounds [] to support the

belief that the person so held is infected.” Ex parte Martin, 83 Cal. App. 2d 164

(1948). Public Health Officials must be able to show “probable cause to believe the

person so held has an infectious disease …” Id.

In a case that is somewhat analogous to what Californians are facing with the

coronavirus pandemic of 2020, California courts found that Public Health Officials

could not quarantine 12 blocks of San Francisco Chinatown because of nine deaths

due to bubonic plague. See Jew Ho v. Williamson, 103 F. 10 (C.C. Cal. 1900); Wong

Wai v. Williamson, 103 F. 1 (C.C. Cal. 1900). These courts found it “purely arbitrary,

unreasonable, unwarranted, wrongful, and oppressive interference with the personal

liberty of complainant” who had “never had or contracted said bubonic plague; that he

has never been at any time exposed to the danger of contracting it, and has never been

in any locality where said bubonic plague, or any germs of bacteria thereof, has or

have existed.” Jew Ho, 103 F. at 10.

In Jew Ho and Wong Wai, the courts found that there were more than 15,000

people living in the twelve blocks of San Francisco Chinatown who were to be

quarantined. The courts found it unreasonable to shut down the ability of over 15,000

people to make a living because of nine deaths. This was one death for every 1,666

inhabitants of Chinatown. As of July 1, 2020, San Bernardino and Riverside Counties

have a combined population of 4,650,631 individuals and as of April 11, 2020, San

Bernardino and Riverside Counties have a total of 66 coronavirus deaths. That is one

death for every 70,464 inhabitants.

California courts have found that “a mere suspicion [of a contagious disease],

unsupported by facts giving rise to reasonable or probable cause, will afford no

justification at all for depriving persons of their liberty and subjecting them to virtual


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imprisonment under a purported order of quarantine.” Ex parte Arta, 52 Cal. App.

380, 383 (1921) (emphasis added). Plaintiffs have never had or contracted said

coronavirus; they have never been at any time exposed to the danger of contracting it,

and have never been in any locality where said coronavirus, or any germs of bacteria

thereof, are known to have existed.

Requiring Plaintiffs to abstain from all religious gatherings, despite substantial

modifications to satisfy the public health interests at stake, violates their California

Constitutional liberty rights.

8. Defendants Violate the Equal Protection Clause of the Fourteenth Amendment.

As to Plaintiffs’ seventh claim, the Orders and Defendants’ enforcement thereof

violate the Fourteenth Amendment, both facially and as applied to Plaintiffs. The

Fourteenth Amendment of the Constitution provides that “[n]o State shall . . . deny to

any person within its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1. Equal protection requires the state to govern impartially—not draw

arbitrary distinctions between individuals based solely on differences that are

irrelevant to a legitimate governmental objection. City of Cleburne, Tex. v. Cleburne

Living Ctr., 473 U.S. 432, 446 (1985).

Defendants intentionally and arbitrarily categorize individuals and conduct as

either “essential” or “non-essential.” Compl. ¶¶ 31-34, 37, 63-65. Those persons

classified as “essential,” or as participating in essential services, are permitted to go

about their business and activities provided certain social distancing practices are

employed. Id. Those classified as “nonessential,” or as engaging in non-essential

activities, are required to stay in their residence, unless it becomes necessary for them

to leave for one of the enumerated “essential” activities. Id.

Strict scrutiny under the Equal Protection Clause applies where, as here, the

classification impinges on a fundamental right, including the right to practice religion

freely, to right to free speech and assembly, and the right to travel, among


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others. Maynard v. U.S. Dist. Court for the Cent. Dist. of California, 701 F. Supp.

738, 742 (C.D. Cal. 1988) (“When a law disadvantages a suspect class or impinges

upon a ‘fundamental right,’ the court will examine the law by applying a strict

scrutiny standard”), aff'd sub nom. Maynard v. U.S. Dist. Court for Cent. Dist. of

California, 915 F.2d 1581 (9th Cir. 1990). Under strict scrutiny review, the law can be

justified only if it furthers a compelling government purpose, and, even then, only if

no less restrictive alternative is available. See, e.g. Memorial Hospital, 415 U.S. at

257-258.

Defendants cannot satisfy strict scrutiny; their arbitrary classifications are not

narrowly tailored measures (that further a compelling government interest) because

defendants’ have granted numerous special exemptions to their bans on public

gatherings, including for purportedly “essential” businesses and activities—provided

that social distancing practices are observed—and even for out-of-home religious

services during Easter. Since these gatherings can be permitted, there can be no doubt

that Defendants must permit Plaintiffs to engage in equivalent constitutionally-

protected activities provided that Plaintiffs also adhere to the social distancing

guidelines.

B. Plaintiffs Face Imminent Irreparable Harm Absent Immediate Injunctive Relief

“In a case like the one at bar, where the First Amendment is implicated, the

Supreme Court has made clear that ‘[t]he loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury’ for purposes of

the issuance of a preliminary injunction.” College Republicans at San Francisco State

University v. Reed, 523 F. Supp. 2d 1005, 1011 (N.D. Cal. 2007) (citing Sammartano

v. First Jud. Dist. Ct., 303 F.3d 959, 973-74 (9th Cir. 2002), in turn citing Elrod v.

Burns, 427 U.S. 347, 373 (1976)); see also S.O.C., Inc. v. Cnty. of Clark, 152 F.3d

1136, 1148 (9th Cir. 1998) (holding that a civil liberties organization that had

demonstrated probable success on the merits of its First Amendment overbreadth


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claim had thereby also demonstrated irreparable harm). “In other words, the

requirement that a party who is seeking a preliminary injunction show ‘irreparable

injury’ is deemed fully satisfied if the party shows that, without the injunction, First

Amendment freedoms would be lost, even for a short period.” Reed, 523 F. Supp. 2d

at 1011. “Unlike a monetary injury, violations of the First Amendment ‘cannot be

adequately remedied through damages.’” Americans for Prosperity Foundation v.

Harris, 182 F. Supp. 3d 1049, 1058 (C.D. Cal. 2016) (citing Stormans, Inc. v. Selecky,

586 F.3d 1109, 1138 (9th Cir. 2009)).

Without an injunction preventing Defendants from further enforcing the Orders

will suffer irreparable harm in the form of deprivation of fundamental freedoms

secured by the First and Fourteenth Amendment to the U.S. Constitution and the

California Constitution. Plaintiffs’ irreparable injuries cannot adequately be

compensated by damages or any other remedy available at law. Thus, irreparable

injury is clearly shown, necessitating the relief Plaintiffs seek in this Application.

C. The Balance of Hardships Tips Decidedly in Plaintiffs’ Favor.

In cases implicating constitutional rights, “the ‘balancing of the hardships’

factor also tends to turn on whether the challengers can show that the regulations they

attack are substantially overbroad.” Reed, 523 F. Supp. 2d at 1101.

Given Plaintiffs’ showing of the facially and as-applied invalidity of the vague,

overbroad Orders, Plaintiffs necessarily have shown that leaving those Orders in place

for even a brief period of time “would substantially chill the exercise of fragile and

constitutionally fundamental rights,” and thereby constitute an intolerable hardship to

Plaintiffs. Reed, 523 F.Supp.2d at 1101. As mentioned above, Defendants’ ban on

communal religious services will deprive Plaintiffs, and potentially millions of other

Californians, of their ability to exercise religious freedom as secured by the First and

Fourteenth Amendments and Article 1 of the California Constitution.

By contrast, temporarily enjoining Defendants’ enforcement of the Orders will

not result in hardship to Defendants, who are in a position to adopt, at least on an


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interim basis, a more narrowly crafted set of equally applied provisions that enable the

government to achieve any legitimate ends without unjustifiably invading First and

Fourteenth Amendment freedoms. See id. In addition, Defendants will suffer no

legitimate harm by accommodating a Plaintiffs’ exercise of fundamental rights in the

same manner Defendants are accommodating thousands—and millions—of others

engaged in secular activities. The Constitution demands no less.

D. Injunctive Relief Is in the Public Interest

“As the Ninth Circuit has consistently recognized, there is a significant public

interest in upholding First Amendment principles.” Americans for Prosperity

Foundation, 182 F. Supp. 3d at 1059 (internal citations omitted); see also Doe v.

Harris, 772 F.3d 563, 683 (9th Cir.2014); Sammartano, 303 F.3d at 974. As such, the

requirement that issuance of a preliminary injunction be in the “public interest”

usually is deemed satisfied when it is clear that core constitutional rights would

remain in jeopardy unless the court intervened. Reed, 523 F. Supp. 2d at 1101. The

public is best served by preserving a foundational tenet of this American democracy:

religious liberty. See Sammartano, 303 F.3d at 974 (“Courts considering requests for

preliminary injunctions have consistently recognized the significant public interest in

upholding First Amendment principles.”).

As discussed above, Plaintiffs’ core constitutional rights to practice religion

freely, free speech, due process, and equal protection, will remain in jeopardy so long

as Defendants remain free to enforce their Orders. Accordingly, issuance of injunctive

relief is proper, and the Court should grant this Application.

II. THE COURT SHOULD DISPENSE WITH ANY BOND REQUIREMENT

Rule 65(c) of the Federal Rules of Civil Procedure provides that a TRO or

preliminary injunction may be issued “only if the movant gives security in an amount

that the court considers proper to pay the costs and damages sustained by any party

found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c).


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However, the Court has discretion as to whether any security is required and, if so, the

amount thereof. See, e.g., Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003).

Plaintiffs request that the Court waive any bond requirement, because enjoining

Defendants from unconstitutionally enforcing the orders as to religious activities will

not financially affect Defendants, who already categorically exempt specified non-

religious activities from compliance. A bond would, however, be burdensome on

already burdened Plaintiffs under these circumstances. See, e.g., Bible Club v.

Placentia-Yorba Linda School Dist., 573 F. Supp. 2d 1291, fn. 6 (C.D. Cal. 2008)

(waiving requirement of student group to post a bond where case involved “the

probable violation of [the club’s] First Amendment rights” and minimal damages to

the District of issuing injunction); citing Doctor John’s, Inc. v. Sioux City, 305 F.

Supp. 2d 1022, 1043-44 (N.D. Iowa 2004) (“requiring a bond to issue before

enjoining potentially unconstitutional conduct by a governmental entity simply seems

inappropriate, because the rights potentially impinged by the governmental entity’s

actions are of such gravity that protection of those rights should not be contingent

upon an ability to pay.”).

CONCLUSION

Plaintiffs respectfully request that the Court grant Plaintiffs’ motion for a

temporary restraining order, and issue an order to show cause why a preliminary

injunction should not be issued, as follows:

1. Defendants, as well as their agents, employees, and successors in office,

shall be restrained and enjoined from enforcing, attempting to enforce, threatening to

enforce, or otherwise requiring compliance with any prohibition on Plaintiffs’

engagement in religious services, practices, or activities at which the Center for

Disease Control’s social distancing guidelines are followed.

2. Defendants shall show cause, at a time and place to be directed by the

Court, why a preliminary injunction should not issue requiring Defendants to act as


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described in above; the temporary restraining order shall remain effective until such

time as the Court has ruled on whether a preliminary injunction should issue.

Such relief is necessary to prevent Defendants from further violating Plaintiffs’

constitutional rights, pending trial on the merits of Plaintiffs’ claims.

Respectfully submitted,

Date: April 14, 2020 DHILLON LAW GROUP INC.

By: /s/ Harmeet K. Dhillon HARMEET K. DHILLON (SBN: 207873) [email protected] MARK P. MEUSER (SBN: 231335)

[email protected] GREGORY R. MICHAEL (SBN: 306814) [email protected] DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, California 94108 Telephone: (415) 433-1700

Attorneys for Plaintiffs


harmeet k. dhillon (sbn: 207873) gregory r. michael (sbn ...€¦ · 14/4/2020 · harmeet k....

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